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Judgment
Sandeep Sharma, Judge(oral):
By way of present petition filed under Art. 226 of the Constitution of India, petitioner has prayed for following main relief(s):
“(a)That the Writ in the nature of Mandamus directing the Respondents to install three phase electricity connection to the Petitioner which has not been installed/ done despite lapse of sufficient time and despite the fact that the respondent Board has received payment way back as desired.
(b)That the Respondent Board may also be directed to lay proper wires and poles so that that there is no hindrance/ obstruction in supply of three phase electricity to the Petitioner. If the need arises the land for laying such poles/lines may be acquired. ”
Precisely, the grouse of the petitioner, as has been highlighted in the petition and further canvassed by Mr. Mohit Thakur and Mr. Pawan K. Gau-tam, Advocates, appearing for the petitioner is that despite there being ap-plication and necessary compliances as required under Electricity Act, 2003, three-phase electricity connection is not being installed, as a result whereof, great prejudice is being caused to the petitioner.
Quintessential facts, as emerge from the pleadings adduced on record by respective parties are that in the year 2018, petitioner made an application for installation of a three-phase electricity connection and he al-so deposited an amount of Rs.44,865/-, as was demanded by the respon-dent Board, however, the fact remains that more than 13 years have passed but till date, on one pretext or the other, election connection is not being released/installed, as such, the petitioner is compelled to approach this Court, in the instant proceedings, for the grant of reliefs, as have been reproduced herein above.
Pursuant to notices issued in the instant petition, respondent Board has filed reply, wherein facts, as have been noticed herein above, have not been disputed, rather an attempt is being made to refute the claim of the petitioner on the ground that despite there being repeated communications, petitioner has not been able to remove hindrances in laying electricity wires. It is averred in the reply that Right of Way (RoW) is to be provided by the petitioner. It is further averred in the reply that though, after receipt of appli-cation as well as request made, an attempt was made to lay power line but since objection was raised by certain land owners, needful could not be done.
Ms. Sunita Sharma, learned Senior Counsel duly assisted by Ms. Manisha Kumari and Ms. Harshita Dogra, Advocates, appearing for the res-pondent Board, while inviting attention of this Court to the Electricity Manual submits that it is duty of the consumer to provide Right of Way (RoW), through or over any land under his/her control and jurisdiction, as may be required by the HPSEBL in connection with provision or maintenance of a service line to the premises of the consumer and subject to the provisions of Section 67 of the Act to the premises of any other consumer. She also placed reliance upon certain judgments passed by Hon’ble Apex Court to state that it is duty of the consumer to cooperate with Electricity Board for establishment of any infrastructure or power lines including Right of Way (RoW), which shall be dealt with in later part of this judgment.
Having heard learned counsel for the parties and perused material available on record, this Court finds that in the year 2013, petitioner made an application for installation of a three-phase electricity connection but such prayer of him has not been granted till date, on the pretext that he has failed to provide Right of Way (RoW). Though, a communication has been placed on record by respondent Board (Annexure R-2 colly) suggestive of the fact that certain residents of area raised objection with regard to laying electricity wire, which is necessary for installation of three-phase electricity connection in the premises of the petitioner, but having carefully perused S.43 of the Electricity Act, this Court is persuaded to agree with learned counsel for the petitioner that it is duty of Electricity Board being the licen-see to give supply of electricity on an application made by owner of premis-es within a period of one month, from the date of receipt of application.
At this stage, it would be apt to take note of S.43 of the Act, which reads as under:
“43.Duty to supply on request (1) Every distribution licensee, shall, on an application by the owner or occupier of any premises, give supply of electricity to such premises, within one month after receipt of the application requiring such supply;
Provided that where such supply requires extension of distribution mains, or commissioning of new sub-stations, the distribution licensee shall supply the electricity to such premises immediately after such extension or commissioning or within such period as may be specified by the Appropriate Commission.
Provided further that in case of a village or hamlet or area, wherein no provision for supply of electricity exists, the Appropriate Commission may extend the said period as it may consider necessary for electrification of such village or hamlet or area.
(2)It shall be the duty of every distribution licensee to provide, if required, electric plant or electric line for giving electric supply to the premises specified in sub-section 91);
Provided that no person shall be entitled to demand, or to continue to receive, from a licensee a supply of electricity for any premises having a separate supply unless he has agreed with the licensee to pay to him such price as determined by the Appropriate Commission.
(3)If distribution licensee fails to supply the electricity within the period specified in sub-section (1), he shall be liable to a penalty which may extend to one thousand rupees for each day of default. ”
Careful perusal of aforesaid provision of law though specifically talks about duty of Electricity Board to provide electricity connection but it no-where suggests that in that regard, Right of Way (RoW), if any, is to be pro-vided by the applicant. It is also apt to take note of S.67 of Act, which reads as under:
“67.(1) A licensee may, from time to time but subject always to the terms and conditions of his licence, within his area of supply or transmission or when permitted by the terms of his licence to lay down or place electric supply lines without the area of supply, without that area carry out works such as –
(a)To open and break up the soil and pavement of any street, railway or tramway;
(b)To open and break up any sewer, drain or tunnel in or under any street, railway or tramway;
(c)To alter the position of any line or works or pipes, other than a main sewer pipe;
(d)To lay down and place electric lines, electrical plaint and other works;
(e)To repair, alter or remove the same;
(f)To do all other acts necessary for transmission or supply of electricity
(2)The Appropriate Government may, by roles made by it in this behalf, specify;
(a)the cases and circumstances in which the consent in writing of the appropriate government local authority, owner or occupier, as the case may be, shall be required for carrying gout works;
(b)The authority which may grant permission in the circums-tances where the owner or occupier objects to the carrying out of works;
(c)The nature and period of notice to be given by the licensee be-fore carrying out works;
(d)The procedure and manner of consideration of objections and suggestion received in accordance with the notice referred to in clause ©;
(e)The determination and payment of compensation or rent to the persons affected by works under this section;
(f)The repairs and works to be carried out when emergency ex-ists;
(g)The right of the owner or occupier to carry out certain works under this section and the payment of expenses therefor
(h)The procedure for carrying out other works near sewers, pipes or other electric lines or works;
(i)The procedure for alteration of the position of pips, electric lines, electrical plant, telegraph lines, sewer lines, tunnels, drains, etc.;
(j)The procedure for fencing, guarding, lighting and other safety measures relating to works on streets, railways, tramways, sewers, drains or tunnels and immediate reinstatement the-reof.
(k)The avoidance of public nuisance, environmental damage and unnecessary damage to the public and private property by such works
(l)The procedure for undertaking works which are not reparable by the appropriate Government licensee or local authority;
(m)The manner of deposit of mount required for restoration of any railways, tramways, waterways, etc.
(n)The manner of restoration of property affected by such works and maintenance thereof;
(o)The procedure for deposit of compensation payable by the li-censee and furnishing of security; and
(p)Such other matters as are incidental or consequential to the construction and maintenance of works under this section.
(3)A licensee shall, in exercise of any of the powers conferred by or under this section and the rules made thereunder, caus as little damage, detriment and inconvenience as may be, and shall make full compensation for any damage detriment or inconvenience caused by him or by any one employed by him.
(4)Where any difference or dispute (including amount of compensation under sub-section (3) arises under this under this section, the matter shall be determined by the Appropriate Commission.
(5)The Appropriate Commission, while determining any difference or dispute arising under this section in addition to any compensation under sub-section (3) may impose a penalty not exceeding the amount of compensation payable under that sub-section.
In terms of aforesaid provision, an appropriate Government is em-powered to make rules to give effect to provisions contained under Electrici-ty Act. While exercising power under afore provision of law, Central Gov-ernment has framed rules namely Works of Licence Rules, 2006. S.3 of afore Rules, deals with duty to be carried out by licensee, which reads as under:
“3.Licensee to carry out works. – (1) A licensee may –
(a)Carry out works, lay down or place any electricity supply line or oth-er works in, through, or against, any building, or on, over or under any land whereon, wherever or whereunder any electric supply-line or works has not already been lawfully laid down or placed by such licensee, with the prior consent of the owner or occupier of any build-ing or land.”
As per aforesaid provision of law, it is duty of licensee to carry out works, lay down or place any electricity supply line or other works in, through, or against, any building, or on, over or under any land whereon, wherever or whereunder any electric supply-line or works has not already been lawfully laid down or placed by such licensee, with the prior consent of the owner or occupier of any building or land.
First proviso to rule provides that in case owner, occupier or building/ land raises an objection in respect of work to be carried out by licensee, li-censee shall obtain permission in writing from District Magistrate or Com-missioner of Police or other officer authorized by State Government for car-rying out the work.
Though, Ms. Sharma, learned counsel for the respondent Board, vehemently argued that it is the duty of the petitioner to provide Right of Way (RoW) and to ensure that no objection is raised by person, whose land may come under electricity line, but having perused the rule extracted here-in above, this Court is not persuaded to agree with Ms. Sharma, rather is of the view that obstruction, if any, caused by any person in laying of electricity line on the application made by an individual, is to be removed by the li-censee i.e. electricity board. Specific provision has been made in the Rules as provided herein above, to deal with situation where objections are raised qua laying of electricity line. In the event of objection being raised, licencee can always approach District Magistrate as well as Commissioner of Police so that necessary assistance is provided to the licensee for execution of work on the spot, but certainly, electricity connection cannot be denied to an individual for the reason that he has not been able to provide Right of Way (RoW).
Though, clause 30 of Electricity Manual, suggests that consumer will provide to the HPSEBL, Right of Way (RoW) in, through or over any land under his/her control and jurisdiction as required by HPSEBL in connection with provision or maintenance of a service line to the premises of the con-sumer but rule 3 of afore Rules, castes duty upon licencee Board to get ob-struction, if any, caused by land owners removed.
There cannot be any quarrel with the proposition of law laid down by Hon’ble Apex Court in Power Grid Corporation of India Ltd. v. Century Tex-tiles and Industries Ltd. & Ors. (2017) 5 SCC 143, Haryana Vidyut Prasaran Nigam Ltd. v. Navin Kumar & Ors. (2008) 16 SCC 282 and Madhya Pra-desh Electricity Board v. Shri Basantibai (1988) 1 SCC 23 , which have been pressed into service by Ms. Sharma, but having perused aforesaid judgments, this court finds that applicant is only required to provide neces-sary assistance but certainly, in terms of rules, as discussed herein above, necessary action qua removal of obstruction, if any, is required to be taken by licensee. Hence, aforesaid judgments have no applicability in the given facts and circumstances of the case.
Consequently, this court finds merit in the petition and same is al-lowed. Respondent Board is directed to install three-phase electricity con-nection in the premises of petitioner, pursuant to his having made applica-tion in 2013, expeditiously, preferably within a period of six weeks from to-day.
Needless to say, respondent Board is always at liberty to approach District Magistrate or Commissioner of Police, for providing adequate assis-tance in laying power line for installation of three-phase electricity connec-tion in the premises of petitioner.
The petition stands disposed of in afore terms, alongwith all pending applications.